145 F.

3d 1345
98 CJ C.A.R. 2236
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.

Melvin E. HARWICK, Plaintiff-Appellant,

v.
Dwayne ANDERSON, individually and as Sheriff of McClain
County, Oklahoma; McCLAIN COUNTY, OKLAHOMA, a
political
subdivision of the State of Oklahoma, by and through its
Board of County Commissioners, Defendants-Appellees.
No. 97-6390.

United States Court of Appeals, Tenth Circuit.

May 7, 1998.

Before TACHA, LOGAN, and LUCERO, Circuit Judges.

1ORDER AND JUDGMENT*

2

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.

Plaintiff Melvin E. Harwick was arrested pursuant to a bench warrant issued by

a state court judge which stated on the face of the warrant that plaintiff would
be released upon the posting of a $5000 cash bond. Plaintiff was detained in the
McClain County, Oklahoma, jail for seven days before being arraigned. He
brought this action under 28 U.S.C. 1983 alleging violation of his

constitutional rights as a result of the delay in the arraignment and because of

insufficient attention to his medical needs while incarcerated. Plaintiff also
brought various state-law-based tort claims. As defendants, plaintiff named
Dwayne Anderson, individually and as sheriff of McClain County; McClain
County, by and through its Board of County Commissioners; and John Does,
unknown jailers and deputies.
4

In granting summary judgment for defendants, the district court found that
plaintiff failed to allege facts to establish a county policy of wrongful
imprisonment and denial of medical treatment and, therefore, could not
maintain his claim against the county. As to the sheriff, who was sued both
individually and in his official capacity, the court held that plaintiff had failed
to show any individual participation on the part of the sheriff, thus dooming
plaintiff's effort to establish individual liability. With regard to the official
capacity claims against the sheriff, the court again concluded that plaintiff had
failed to set out facts tending to establish an official policy or custom or failure
to train on the part of the sheriff. Because there was no showing of any personal
involvement on the part of the sheriff, state law tort claims against him
individually similarly failed. Further, because no individuals in the sheriff's
employ were named as defendants, plaintiff failed to establish respondeat
superior liability in tort to sustain the official capacity suit. Finally, the court
found that plaintiff had withdrawn his claims brought under the Oklahoma
Governmental Tort Claims Act.

In our de novo review of the grant of summary judgment, we apply the same
standard as that used by the district court. See Jenkins v. Wood, 81 F.3d 988,
990 (10th Cir.1996). That standard is a familiar one: a court correctly grants
summary judgment only where "there is no genuine issue as to any material fact
and [ ] the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c). As is required, we have examined the record in the light
most favorable to plaintiff, as the nonmoving party, and have extended to him
all reasonable factual inferences. See Jenkins, 81 F.3d at 990. We affirm.

The court properly granted the motion for summary judgment filed by the
McClain Board of County Commissioners. "Under Oklahoma law, the Board
has no statutory duty to hire, train, supervise or discipline the county sheriffs or
their deputies." Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir.1988). Only
by showing that the Board "voluntarily undertook responsibility for hiring or
supervising [McClain] county law enforcement officers," id., would plaintiff
even be able to state a claim against the Board under these circumstances.
Plaintiff made no such allegation. To the extent plaintiff attempts to establish
liability on the part of the county through a theory of respondeat superior, his

effort fails because 1983 does not encompass respondeat superior liability on
the part of a municipality. See Monell v. Department of Social Servs., 436 U.S.
658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
7

Turning to the sheriff individually, our review of the record reveals no evidence
of any personal participation by the sheriff in the incidents involving plaintiff.
It is undisputed that the sheriff had no knowledge of plaintiff's long
incarceration without arraignment or the alleged denial of medical treatment
until he was informed by his attorney of this lawsuit. The sheriff, therefore,
cannot be held individually liable for the situation that befell plaintiff. See
Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.1976) ("Personal
participation is an essential allegation in a 1983 claim."); see also Mee v.
Ortega, 967 F.2d 423, 430-31 (10th Cir.1992) (finding no 1983 liability
where there was no affirmative link between the constitutional violation and the
supervisor's own actions, citing Meade, 841 F.2d at 1527). Further, because
plaintiff did not identify a specific defendant or defendants who personally
participated in the alleged harm, he cannot maintain a cause of action against
the sheriff individually based on respondeat superior liability. See Andrews v.
Philadelphia, 895 F.2d 1469, 1488 (3d Cir.1990).1

Plaintiff also sued the sheriff in his official capacity, thus, in reality attempting
to impose liability on McClain County. See Meade, 841 F.2d at 1529. "For a
county to be held responsible, it must have caused the harm through the
execution of its own policy or custom by those whose edicts or acts may fairly
be said to represent official policy." Id. Plaintiff has proffered no evidence
regarding any county policy or custom which could have caused his harm. He
merely testified to his own knowledge of practices in other sheriff's departments
and surmised that the policies and customs of defendant must have been the
genesis of the harm to him. This is insufficient to sustain a claim against the
sheriff in his official capacity.

Plaintiff argues that the testimony of Undersheriff Barrow is sufficient evidence

of county policy. We disagree. Mr. Barrow testified as follows:

10 [H]ave you had other civil cases where the judges say till they meet the face of
Q:
the bond, don't bring them over for an arraignment?
A. On occasion.
11
Q. On occasion? Can you tell me now many times?
12
A. I honestly don't remember.
13

Q. More than 10?

14
A. Less than 10.
15
16

I R. tab 39, Barrow deposition at 24-25.

17

We agree with the district court that this evidence is insufficient to establish a
practice or policy on the part of the Sheriff's Department. Plaintiff provided no
detail of the circumstances of those prior incidents. At best, the evidence
identifies a practice of the county judges and not one of these defendants.

18

To the extent plaintiff claimed that the sheriff was liable for failure to train his
deputies, plaintiff must put forth evidence tending to establish that "the failure
to train amounts to deliberate indifference to the rights of persons with whom
the police come into contact." City of Canton v. Harris, 489 U.S. 378, 388, 109
S.Ct. 1197, 103 L.Ed.2d 412 (1989). In order to be liable, the sheriff must have
had notice that his departmental procedures were inadequate and substantially
certain to result in a violation of plaintiff's constitutional rights. See id. at 396
(O'Connor, J., concurring in part). Specifically with regard to a failure to train
claim, plaintiff "must prove 'the need for more or different training is so
obvious, and the inadequacy so likely to result in the violation of constitutional
rights, that the [sheriff] can reasonably be said to have been deliberately
indifferent to the need' for additional training." Jenkins, 81 F.3d at 994 (quoting
Harris, 489 U.S. at 396). Because plaintiff here seeks to establish liability on
the basis of a single incident, he "must show the particular illegal course of
action was taken pursuant to a decision made by a person with authority to
make policy decisions on behalf of the entity being sued." Id. While the parties
do not dispute that the sheriff had the authority to make decisions concerning
the operation of the jail, there is no evidence that the failure to arraign plaintiff
in a timely manner or the alleged failure to provide medical care were due to
any action, inaction, or decision of the sheriff. Plaintiff's claims against the
sheriff in his official capacity, therefore, must fail.

19

Plaintiff states in his opening brief that the federal court had no authority to
dismiss his state court action. The federal court did not dismiss a state court
action; it granted summary judgment to defendants on plaintiff's state law
claims which were part of the federal lawsuit. The federal court had the power
to do this and, indeed, was required to so act when plaintiff failed to establish a
basis upon which he could prevail against defendants on the state law tort
claims.

20

Finally, plaintiff asserts that the district court erred because it failed to consider

20

Finally, plaintiff asserts that the district court erred because it failed to consider
the wording on the face of the warrant which directed the sheriff to take
plaintiff to the nearest magistrate. These words add nothing to the analysis and
do not change the outcome of this case. The district court acknowledged that
plaintiff's detention amounted to a prima facie due process violation under
1983. Unfortunately for plaintiff, however, he was unable to show that the
defendants he sued were liable for that violation.

21

AFFIRMED.

This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3

Plaintiff complains that he was unable to specifically name defendants because

jail personnel did not wear nametags. We note that the district court docket
sheet reflects at least two extensions of the discovery deadline and an order
authorizing the issuance of a subpoena for disclosure of records and appearance
for deposition and trial. Given these and other means available to plaintiff
under the Federal Rules of Civil Procedure, plaintiff should have been able to
identify specific defendants